Guide International governance and law : state regulation and non-state law

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Item specifics Condition: Brand new: A new, unread, unused book in perfect condition with no missing or damaged pages. See the seller's listing for full details. See all condition definitions - opens in a new window or tab Read more about the condition. About this product. Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative.

This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.

Drawing lessons for the state legislature and state regulators, this innovative book will be of great interest to academic researchers and post graduate students in the fields of law, regulation, legal sociology, legal theory, law and economics, and environmental law. It will also be of interest to policy makers and regulators - those working at ministries and government departments drafting legislation.

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Global Governance

Learn more - opens in a new window or tab Postage: May not post to Germany - Read item description or contact seller for postage options. Learn more - opens in a new window or tab Returns: day. Brand new: A new, unread, unused book in perfect condition with no missing or damaged pages. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which igres input from citizens and stifles private initiative. This situation has enhanced the role of n-state law, in forms such as self-regulation and soft law.

They can be considered as the precursors of the modern-day multinational corporations. They can be considered as the first non-governmental organizations NGOs. And the 19th century recognition of belligerency conferred a measure of legal personality on insurgents, thereby foreshadowing the current legal international humanitarian law status of non-state armed groups in non-international armed conflicts. The World Court has also played its part in this respect. The term international legal person—although widely used in international law circles, especially after the Reparation opinion—has little analytical purchase in itself, however.

It is not an a priori threshold that needs to be crossed before an NSA can enjoy rights or obligations under international law. Rather, an NSA enjoys international legal personality because it enjoys certain obligations.

Structure:

The focus of the inquiry should thus simply be on whether an international norm creates rights or obligations for an actor, and when this is indeed the case, the addressee of the norm can be considered as an international legal person. This brief overview shows us that the international legal system, as also further developed by the World Court, has been more heteroglossian than meets the untrained eye. There are, and may be, other subjects of international law than only states, possessing international rights and obligations of a variable nature and scope.

It remains, however, that such rights and obligations are almost exclusively created by states, albeit for NSAs.


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  • 1. Introduction.

States thus remain the gatekeepers of the international legal system; they decide who is in and who is out. So after all, heteroglossia may be more imaginary than real. States, or states assembled in international organizations, are still pulling the strings, and arguably only accept NSAs insofar as these serve the purposes of the state or organization. Small wonder, then, that some scholars have advocated taking heteroglossia seriously, by giving primary agency to all international actors.

These truly heteroglossian approaches, while influential in critical scholarship, have nevertheless failed to enter the mainstream. That being said, what is undeniable is that a panoply of actors play in role in global governance. The term global governance itself has even been invented to denote governance beyond the state: governance by, or at least including, NSAs. We turn to this question in the next section. Most international lawyers with a positivist bent would not deny the important role played by NSAs in the functioning of the current international legal system, but they consider their impact on law-making, compliance-monitoring, and dispute-settlement largely as the outcome of a two - level game.

Law-applying agencies will normally not take issue with how state or organizational authoritative decision-making has come into being. Examples of how NSAs have influenced state preferences are not hard to come by: just think of the outlawing of the slave trade in the 19th century, the creation of the International Criminal Court, or the adoption of conventions on landmines and cluster munitions.

Whether NSAs can also play one - level games in international law-making and policy-making is a different matter. It is doubtful whether we should allow NSAs to play even more one-level games, e. Practical problems and concerns over legitimacy militate against enhancing the law-making capacities of NSAs.

Law and Global Governance - Institute for International Law and Justice

NSAs have not only participated in international law-making games but have also contributed or, more accurately, been allowed to contribute to monitoring compliance with international law. NSA compliance-monitoring can be formal—e. The latter dimension is surely innovative. Consumer and investor pressure, e. As far as NSA participation in dispute-settlement mechanisms is concerned, the picture somewhat resembles the games played in law-making.

Without the pressure of discrete NSAs, some state-to-state contentious proceedings would not have been brought, e. In contrast, opportunities for direct intervention by NSAs in pending international law disputes are somewhat more circumscribed. The ICJ does not allow such intervention, although, in advisory proceedings, states can refer to written documents and statements submitted by NSAs to the Court. Sometimes, states are also willing to conclude an arbitration agreement with NSAs.

Academic Profiles

For instance, in , Dutch NGO Urgenda successfully brought a case before a Dutch court against the Dutch Government for failing to meet its international obligations to sufficiently reduce greenhouse gas emissions. In the previous section, we discussed the participatory rights of NSAs in law-making, compliance-monitoring, and dispute-settlement.

Direct NSA obligations exist, but they are certainly not widespread. They exist for armed groups under humanitarian law treaties 44 and for deep seabed mining corporations under the UN Convention on the Law of the Sea. A normative or political question is whether extending such obligations is desirable. As is known, a major debate has been going on regarding whether corporations incur, or rather should incur, obligations under international human rights law, with the Guiding Principles on Business and Human Rights having settled the matter for non-legal duties.

However, this idea was abandoned because of the limited primary obligations of NSAs, the sheer absence of relevant practice on responsibility, and the heterogeneity of the actors involved. Aspects of responsibility—in particular attribution and reparations—have so far mainly been theorized with respect to armed groups, e. The current legal landscape shows an empowerment of NSAs, a heteroglossian reality, but where does it leave the initial hero in the story: the state? In fact, from an international law perspective, the state can hardly be said to disappear.

Firstly, NSA rights and obligations under international law do not emerge ex nihilo ; they are granted by states , in their capacity as the quasi-exclusive law-makers in international law. The state has increased due diligence obligations to ensure that NSAs over which it can exercise influence e. From an international governance perspective, the state has similarly not disappeared, but rather it has repurposed itself. This repurposing of the state also plays out at the purely domestic level, e.

Let me finally flag that some autocratic jurisdictions do not seem to opt for such an orderly retreat or repurposing of the state. Instead, they maintain, or even strengthen their totalitarian ambitions. I have shown in this brief article that the participation of NSAs in global governance is a heteroglossian reality, even if the presence of the state continues to loom large. International law or, more accurately, the community of states has responded in a piecemeal fashion to this reality by conferring certain rights and obligations on categories of NSAs.

Whether this has been done adequately is a different question altogether. Rather, a functionally differentiated legal regime tailored to the specific actor and its activities is called for. Scholars may want to inquire whether the current and envisaged regimes are sufficiently guided by the principles of legitimacy, accountability, transparency, and effectiveness. Modesty is in the end also called for. As international lawyers, we may have to resist the temptation to cast all international social relationships in public international law terms or even in legal terms to begin with.

We should not exclude the possibility that transnational regimes may function effectively via domestic regulation, non-state multi-stakeholder regulation, or without any regulation whatsoever.